WASHINGTON – Sen. Rand Paul (R-Ky.) succeeded Sunday in forcing certain controversial provisions of the Patriot Act to expire, including the NSA’s sweeping data collection program. But the lapse isn’t likely to last long.
Running down the procedural clock in a sensational emergency session Sunday night, Paul left the Senate in a stalemate on the House-passed USA Freedom Act. The bill would have allowed the NSA’s controversial bulk data collection, justified under the expiring Section 215 of the Patriot Act, to continue while the intelligence community works with telecommunications companies to reform the program.
The legislation failed in a last-minute vote in the Senate last week, leaving lawmakers with a mere eight hours in session before the Patriot Act provisions expired at the stroke of midnight.
Sunday’s expiration is largely the fault of procedural hurdles, rather than genuine opposition in the Hill’s upper chamber. Although Paul’s staunch opposition requires the Senate to go through a series of procedural runarounds, the Freedom Act is likely to make it through the upper chamber next week.
NSA critics in the Senate praised the long-awaited end of the bulk data dragnet, saying it now forces a debate on the Hill over the agency’s controversial programs.
“Congress now has the opportunity to build on this victory by making meaningful and lasting reforms to U.S. surveillance laws,” Sen. Ron Wyden (D-Ore.), a longtime NSA critic, said in a statement Sunday night. “After Republican leaders stalled for months in a failed attempt to rerun their old playbook for extending mass surveillance, they now have no excuse for not allowing a full debate on the USA Freedom Act as soon as possible. In my view this is the best way to bring new transparency and reforms to U.S. surveillance programs and to bring certainty to our intelligence agencies.”
Senate staffers predict that Tuesday morning is the earliest a final vote could be convened on the bill that would revive the NSA program, along with a handful of other authorities Washington’s intelligence apparatus stands to lose.
In the meantime, lawmakers from both sides of the aisle will be lobbying to attach their tweaks to the legislation. Any changes by the Senate, though, will require the bill to be kicked back to the House, further complicating its path to the president’s desk -- and the NSA’s reset of the program.
Though his efforts to kill the program entirely have likely been stymied, Paul’s staunch opposition -- which critics have called political grandstanding, given his presidential bid -- isn’t sitting well with colleagues.
“The time to negotiate was a week ago last Thursday, when [Paul] turned down every rational offer that was made to him,” Senate Intelligence Committee chair Richard Burr (R-N.C.) said. “I can tell you one thing: There won’t be any negotiations with Rand Paul from this point forward.”
“The need for investigators to collect intelligence on known or suspected terrorists can’t be overstated. Our national security — not to mention the safety of all Americans — is at stake,” Intelligence Committee Vice-Chair Sen. Dianne Feinstein (D-Calif.) said in a statement Sunday night. “That’s why it’s so irresponsible for one senator to prevent action to extend and reform three key counterterrorism tools for his own political gain. Holding critical national security programs hostage to raise political donations is outrageous, but that’s where we stand today."
Central to the debate is NSA’s controversial bulk metadata collection program. That program, one of several that expired on Sunday night, uses orders approved by a secret court to collect en masse certain details on the communications of American citizens. The collection efforts, first revealed by NSA contractor-turned-whistleblower Edward Snowden, have been the subject of fierce controversy since they were revealed in 2013.
Under the USA Freedom Act, the intelligence community will be required to reform the bulk data collection program so that telecommunications companies -- not the government -- hold onto the data stores. The act would also provide modest reform to the Foreign Intelligence Surveillance Court, the secret body in charge of approving the government’s court orders.
Along with the bulk collection program, Sunday night’s deadline also signals a temporary stall for the administration’s roving wiretaps, a program that allows intelligence agencies to use one court order to track multiple devices of a suspect, as opposed to getting individual court orders for each device. The never-used “lone wolf” Patriot Act provision, used to track terror suspects who aren't necessarily part of a specific terror group, also expired, as did other programs authorized by Section 215.
The toiled path to the expiration of the Patriot Act provisions comes after two weeks of protracted political standoff between reformist lawmakers and Sen. Mitch McConnell’s (R-Ky.) camp. The Senate majority leader initially favored a five-year extension of the controversial law, and hedged his bets that his stubbornly opposed colleagues would back off at the eleventh hour.
The House passed the bill early this month, but McConnell delayed a vote on the Freedom Act until late last Friday, hours before lawmakers were supposed to leave on a weeklong Memorial Day recess. Despite the pressure -- exacerbated by a 10-hour filibuster from Paul -- that bill fell just three votes short in the Senate, and an odd-couple coalition of civil liberties-minded lawmakers blocked any attempts to extend the provisions to work out a compromise.
Several lawmakers appear to have changed their tune over the Memorial Day recess. When it’s up for a vote later this week, the bill’s supporters are now confident it will sail through.
Although it may ultimately be revived, the NSA’s program appeared doomed from the minute lawmakers gaveled in at 4 p.m. Sunday. Senior administration officials have said in recent days that despite the midnight deadline, they would begin shutting the program down at 4 p.m., and would be unable to reverse the shutdown after 8 p.m.
It will take about a day to get the servers back up and running upon passage of the USA Freedom Act, the officials told reporters last week.
White House and intelligence officials have raised the alarm in the runup to the hard deadline, saying the programs’ expiration, even if temporary, will be the equivalent of playing “Russian roulette” with national security.
But critics say that concern is overblown, and there are still multiple avenues by which the government can get the information it needs for counterterrorism investigations come Monday morning.
In question now is whether the administration will use a separate section of the Patriot Act, Section 224, to continue operating the now-defunct programs in the interim. That section, the grandfather clause, allows active investigations begun prior to the expiration of the provisions to continue. The White House has said in recent days that it will not continue the bulk data collection program under that grandfather provision, but it has not clarified what it will do with the other programs.
Burr said the grandfather clause can be used “on investigations that are current and active.”